In September 2001, the habeas corpus court found that Leonard Scott Milliken received ineffective assistance of appellate counsel at his trial and ordered that Milliken be given a new appeal. The State did not file an appeal from this ruling, see OCGA § 9-14-52 c, nor did it file a cross appeal after we granted Milliken a certificate of probable cause to appeal in order to consider the propriety of the relief ordered by the habeas corpus court. See Birt v. Hopper , 245 Ga. 221 265 SE2d 276 1980. In Milliken v. Stewart , 276 Ga. 712 583 SE2d 30 2003, we reversed the habeas corpus court on the basis that the court erred by granting Milliken a second appeal when it should have granted Milliken a new trial. We remanded the case to the habeas corpus court to implement the correct remedy. Compare Hughes v. Sikes , 273 Ga. 804 3 546 SE2d 518 2001 remanding entire order. On remand in July 2003 the habeas corpus court ordered that Milliken be given a new trial. The State now appeals, contending in its enumerations that the habeas corpus court erred in various ways when it found Milliken received ineffective assistance of appellate counsel. However, the merits of the effectiveness of Milliken’s appellate counsel were reached and resolved in the habeas corpus court’s final order of September 2001. The State’s attempt to challenge those merits now is untimely. OCGA § 5-6-38 a. Contrary to the State’s argument, granting a new trial to an appellant does not upon remand of the case entitle the appellee to a new appeal in order to challenge issues that were conclusively resolved adversely to the appellee in the lower court’s original order.1 Regarding the only ruling properly before us, the State does not enumerate any error as to the habeas corpus court’s July 2003 order. Our review of that order revealing nothing to indicate error, see generally In the Interest of H.A.M. , 201 Ga. App. 49, 50 410 SE2d 319 1991, we affirm the habeas corpus court.
Judgment affirmed . All the Justices concur, except Benham, Carley and Hines, JJ., who dissent .
